Shutdown pushes EEO-1 deadline to May 31

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UPDATE: Feb. 1, 2019: EEOC said that due to the partial lapse in appropriations, its EEO-1 portal opening has been postponed until early March 2019. The deadline to submit EEO-1 data will be extended until May 31, 2019. The agency said more details will be forthcoming on its EEO-1 website in the coming weeks.

Dive Brief:

As the U.S. federal government shutdown reaches day 33, employment law experts are warning the upcoming deadline to submit this year's Employer Information Report EEO-1, also known as an EEO-1 report, may be delayed.

Last year, the U.S. Equal Employment Opportunity Commission (EEOC) opened the EEO-1 electronic portal and filing process Jan. 24, 2018. The deadline to file 2017 EEO-1 reports was originally set for March 31, 2018, but was extended to June 1, 2018, mainly due to employer requests.

Now, the EEOC employees in charge of updating and opening the EEO-1 portal are currently furloughed, according to Arthur Tacchino, chief innovation officer and principal at reporting and compliance firm SyncStream, who spoke with HR Dive. This could, in turn, push the 2019 filing deadline for 2018 EEO-1 reports — currently March 31 — back further, Tacchino said.

Dive Insight:

EEO-1 reporting has been a fixture of employment law for more than 50 years, but recent events have put a political spotlight on the relatively routine process. During the Obama administration, EEOC added compensation information reporting requirements to the EEO-1. The component, touted by supporters as a way to combat pay discrimination, was later blocked in 2017 by the Trump administration, which ordered a review and an immediate stay of the pay data collection aspect on EEO-1 forms.

Employee groups sued over the decision to abandon pay data reporting, but the 2018 process continued unabated. This doesn't preclude the possibility EEOC might revisit the issue, however, particularly since Janet Dhillon, President Donald Trump's nominee-in-waiting for Chair of the commission, promised to rework and replace pay data reporting requirements on the EEO-1 in a timely manner during a 2017 confirmation hearing.

Experts have previously advised HR departments that it may be a good idea to collect pay data as part of EEO-1 reporting regardless of what is mandated by EEOC. Having the info, according to attorneys at Epstein Becker Green, can set employers up to perform a larger pay audit. But employers must exercise caution; the information is sensitive and is not considered privileged, meaning it may be considered discoverable in the event the employer is sued.

Though the process for 2018 EEO-1 reporting may face delays, employers should continue their process as if there were no delay, Tacchino told HR Dive. "With so much uncertainty, it's better to be prepared to report by the current deadline even if it is extended, rather than be caught out of compliance in the event the deadline remains March 31," he said. "Whether the deadline remains the same or is extended employers should have everything they need to prepare their EEO-1 filings."